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Wilner v. National Security Agency

December 30, 2009

THOMAS WILNER, GITANJALI GUTIERREZ, MICHAEL J. STERNHELL, JONATHAN WELLS DIXON, JOSHUACOLANGELOBRYAN, BRIAN J. NEFF, JOSEPH MARGULIES, SCOTT S. BARKER, JAMES E. DORSEY, ASMAH TAREEN, RICHARD A. GRIGG, THOMAS R. JOHNSON, GEORGE BRENT MICKUM IV, STEPHENM. TRUITT, JONATHAN HAFETZ, TINA M. FOSTER, ALISON SCLATER, MARC D. FALKOFF, DAVID H. REMES, H. CANDACE GORMAN, CHARLES CARPENTER, JOHN A. CHANDLER AND CLIVE STAFFORD SMITH, PLAINTIFFS-APPELLANTS,
v.
NATIONAL SECURITY AGENCY AND DEPARTMENT OF JUSTICE, DEFENDANTS-APPELLEES.*FN1



SYLLABUS BY THE COURT

Plaintiffs-appellants Thomas Wilner, et al., attorneys representing individuals detained by the United States government at Guantánamo Bay, Cuba, appeal from a July 31, 2008 judgment of the United States District Court for the Southern District of New York (Denise Cote, Judge) entered after a June 25, 2008 opinion and order granting the motion for summary judgment of defendants-appellees the National Security Agency ("NSA") and the Department of Justice ("DOJ") in plaintiffs' Freedom of Information Act ("FOIA") case. Plaintiffs submitted FOIA requests to the NSA and DOJ seeking records showing whether the government has intercepted plaintiffs' communications relating to the representation of their detainee clients. The NSA and DOJ served and filed so-called Glomar responses-neither confirming nor denying the existence of such records-pursuant to FOIA Exemptions 1 and 3. Whether, as a general matter, agencies may invoke the Glomar doctrine and whether, in particular, the NSA may invoke the Glomar doctrine in response to a FOIA request for records obtained under the Terrorist Surveillance Program ("TSP") are both questions of first impression for our Court.

We affirm the judgment of the District Court upholding the NSA's Glomar response and hold that: (1) a Glomar response is available to agencies as a valid response to FOIA requests; (2) an agency may issue a Glomar response to FOIA requests seeking information obtained pursuant to a "publicly acknowledged" intelligence program such as the TSP, at least when the existence of such information has not already been publicly disclosed; (3) the NSA properly invoked the Glomar doctrine in response to plaintiffs' request for information pursuant to FOIA Exemption 3; (4) the government's affidavits sufficiently allege the necessity of a Glomar response in this case, making it unnecessary for us to review or to require the District Court to review ex parte and in camera any classified affidavits that the NSA might proffer in support of its Glomar response; and (5) we find no evidence in the record that the NSA invoked Glomar for the purpose of concealing activities that violate the Constitution or are otherwise illegal. We agree with counsel for all parties that we need not reach the legality of the underlying TSP because that question is outside of the scope of this FOIA action.

Affirmed.

The opinion of the court was delivered by: JOSÉ A. Cabranes, Circuit Judge

Argued: October 9, 2009

Before: CABRANES and LIVINGSTON, Circuit Judges, and KORMAN, District Judge.*fn2

Plaintiffs-appellants Thomas Wilner, et al., attorneys representing individuals detained by the United States government at Guantánamo Bay, Cuba, appeal from a July 31, 2008 judgment of the United States District Court for the Southern District of New York (Denise Cote, Judge) entered after a June 25, 2008 opinion and order granting the motion for summary judgment of defendants-appellees the National Security Agency ("NSA") and the Department of Justice ("DOJ") in plaintiffs' Freedom of Information Act ("FOIA") case. Plaintiffs submitted FOIA requests to the NSA and DOJ seeking records showing whether the government has intercepted plaintiffs' communications relating to the representation of their detainee clients. The NSA and DOJ served and filed so-called Glomar responses-neither confirming nor denying the existence of such records-pursuant to FOIA Exemptions 1 and 3; the FBI also filed a similar response pursuant to FOIA Exemption 1.*fn3 Whether, as a general matter, agencies may invoke the Glomar doctrine and whether, in particular, the NSA may invoke the Glomar doctrine in response to a FOIA request for records obtained under the Terrorist Surveillance Program ("TSP" or "program") are both questions of first impression for our Court.

We affirm the judgment of the District Court upholding the NSA's Glomar response and hold that (1) agencies may invoke the Glomar doctrine when responding to FOIA requests, and thus may refuse to confirm or deny the existence of the requested records to prevent cognizable harm under a FOIA exemption; (2) Glomar responses are available, when appropriate, to agencies when responding to FOIA requests for information obtained under a "publicly acknowledged" intelligence program, such as the TSP, at least when the existence of such information has not already been publicly disclosed; (3) the NSA properly issued a Glomar response to plaintiffs' request for information pursuant to FOIA Exemption 3 (specifically, pursuant to section 6 of the National Security Agency Act of 1959); (4) the government's affidavits sufficiently support its invocation of the Glomar doctrine in this case and we therefore decline to review ourselves or require the District Court to review ex parte and in camera any classified affidavits the NSA might proffer in further support of its Glomar response; and (5) we find no evidence in this record that the NSA invoked Glomar for the purpose of concealing illegal or unconstitutional activities. We agree with counsel for all parties that we need not determine the legality of the TSP because that question is beyond the scope of this FOIA action.

BACKGROUND

Plaintiffs*fn4 are law professors and attorneys at "prominent law firms" and "established non- profit organizations," who represent individuals detained by the United States government at Guantánamo Bay, Cuba, for suspected terrorist activity. Appellants' Br. 5. Plaintiffs note that they began representing detainees after undergoing security clearance. Defendants are the NSA and the DOJ. The NSA is an agency within the Department of Defense that is charged with, among other tasks, collecting, processing, and disseminating signals intelligence ("SIGINT") information for national foreign intelligence purposes. NSA's SIGINT work includes intercepting communications necessary to national defense, national security, and the conduct of the foreign affairs of the United States. The DOJ is the cabinet department charged with law enforcement relevant to this case.

In the aftermath of the September 11, 2001 attacks on the United States by al Qaeda, President George W. Bush secretly authorized the TSP, which empowered the NSA "to intercept the international communications of people with known links to Al Qaeda and related terrorist organizations." George W. Bush, President's Radio Address (Dec. 17, 2005), excerpted in Bush on the Patriot Act and Eavesdropping, N.Y. Times, Dec. 18, 2005, at 43 (full transcript available at http://www.nytimes.com/2005/12/17/politics/17text-bush.html (last visited Oct. 28, 2009)) ("President Bush's Address"). President Bush described the TSP as "a highly classified program that is crucial to our national security. Its purpose is to detect and prevent terrorist attacks against the United States, our friends and allies." Id. It is not disputed that TSP surveillance was conducted without warrants and without oversight by the Foreign Intelligence Surveillance Court ("FISC"). The FISC is a United States court that was established by the Foreign Intelligence Surveillance Act of 1978 ("FISA") and has "jurisdiction to hear applications for and grant orders approving electronic surveillance anywhere within the United States under the procedures set forth" in the FISA,50 U.S.C. § 1803 (a)(1), and "to hear applications for and grant orders approving a physical search for the purpose of obtaining foreign intelligence information anywhere within the United States under the procedures set forth" in the FISA. 50 U.S.C. § 1822 (c).

The TSP served as an "early warning" system intended to detect and prevent further terrorist attacks by intercepting communications between known and potential terrorists and their affiliates. To intercept a communication under the TSP, one of the parties to the communication had to be located outside of the United States, and there had to be a reasonable basis to conclude that one party to the communication was a member of al Qaeda, affiliated with al Qaeda, or a member of an affiliated organization. The NSA conducted TSP surveillance in secret until, following news reports revealing the program, President Bush publicly acknowledged the existence of the TSP in a radio address on December 17, 2005. On January 17, 2007, Attorney General Alberto Gonzales announced that TSP electronic surveillance would henceforth be subject to the approval of the FISC and that the President's original authorization of the TSP had lapsed. The TSP itself has ceased to exist and, as counsel for the government noted at oral argument, to the extent that any similar electronic surveillance is taking place, that activity "shifted under the rubric of the FISA court." Tr. 12-13.

By separate letters to the NSA and the DOJ dated January 18, 2006, plaintiffs requested, pursuant to FOIA, seven categories of records.*fn5 Only the first of plaintiffs' FOIA requests ("Request No. 1") is at issue on this appeal.*fn6 Request No. 1 sought "records obtained or relating to ongoing or completed warrantless electronic surveillance or physical searches regarding, referencing or concerning any of the plaintiffs."

In response to plaintiffs' Request No. 1, the NSA invoked the Glomar doctrine-meaning that it refused to confirm or deny whether the agency possessed records responsive to the request. This lawsuit followed. Plaintiffs' complaint alleged that they "have a statutory right to the records that they seek, and there is no legal basis for the defendants' refusal to disclose them," and sought principally a declaration that defendants' refusal to disclose the requested records was unlawful and an order compelling defendants to produce the records without further delay. J.A. 8(Second Am. Compl. for Declaratory and Injunctive Relief). The NSA and DOJ filed a Motion for Partial Summary Judgment on the Glomar issue.

In an opinion and order of June 25, 2008, the District Court granted defendants' motion for partial summary judgment, holding that (1) the NSA was permitted to provide a Glomar response to plaintiffs' FOIA requests for information potentially acquired through electronic surveillance because the requested records, if they exist, are protected under FOIA Exemption 3 (specifically, pursuant to section 6 of the National Security Agency Act of 1959*fn7); (2) revealing whether or not the requested documents exist would not only violate particular statutes, but would also undermine national security; (3) the NSA did not provide a Glomar response for the purpose of concealing illegality; and (4) any challenge to the legality of the underlying TSP was beyond the scope of plaintiff's FOIA suit.

DISCUSSION

The issues on appeal are whether, in a FOIA action, a court may uphold an agency's invocation of the Glomar doctrine where the Executive Branch has officially acknowledged the existence and contours of a program concerning which records are sought and where the agency claims the specific documents requested fall under, or would fall under, identified FOIA exemptions. Accordingly, we consider first whether to adopt the Glomar doctrine in our Circuit and second, if it is in fact available, whether the Glomar doctrine was properly invoked in this case.

I. The Glomar Doctrine

As the District Court noted in its opinion, "[t]he Second Circuit has never opined on the Glomar Response." Wilner, 2008 WL 2567765, at *2 n.2. We take this opportunity now to address the availability of the Glomar doctrine to an agency when it responds to a FOIA request.

The Glomar doctrine originated in a FOIA case concerning records pertaining to the Hughes Glomar Explorer, an oceanic research vessel. See Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976). In Phillippi, the Central Intelligence Agency ("CIA") claimed that the "existence or nonexistence of the requested records was itself a classified fact exempt from disclosure under . . . FOIA." Id. at 1012. The CIA then responded to the plaintiff's FOIA request by asserting that, "in the interest of national security, involvement by the U.S. government in the activities which are the subject matter of [plaintiff's] request can neither be confirmed nor denied." Id.This principle-that an agency may, pursuant to FOIA's statutory exemptions, refuse to confirm or deny the existence of certain records in response to a FOIA request-has since become known as the Glomar doctrine. See, e.g., Hunt v. CIA, 981 F.2d 1116, 1117-18 (9th Cir. 1992). The government urges us to adopt the Glomar doctrine as Circuit law, and plaintiffs do not object to our doing so. Mindful that mere stipulation by the parties, standing alone, cannot serve as the basis for our conclusions of law, we turn to that question.

The Glomar doctrine and government use of the Glomar response is firmly established in other Circuits. See, e.g., Larson v. Dep't of State, 565 F.3d 857, 861-62, 870 (D.C. Cir. 2009) (upholding the NSA's use of the Glomar response to plaintiffs' FOIA requests regarding past violence in Guatemala pursuant to FOIA Exemptions 1 and 3); Bassiouni v. CIA, 392 F.3d 244, 246 (7th Cir. 2004) (noting that the Glomar doctrine is well established); Minier v. CIA, 88 F.3d 796, 800-02 (9th Cir. 1996) (permitting the CIA to invoke the Glomar doctrine in response to a FOIA request seeking employment records of an alleged CIA operative); cf. Carpenter v. U.S. Dep't of Justice, 470 F.3d 434, 436-37 (1st Cir. 2006) (endorsing the Glomar doctrine though evaluating the case as an ordinary FOIA suit after assuming the existence of documents that plaintiff requested under FOIA). The Glomar doctrine is well settled as a proper response to a FOIA request because it is the only way in which an agency may assert that a particular FOIA statutory exemption covers the "existence or nonexistence of the requested records" in a case in which a plaintiff seeks such records. Phillippi, 546 F.2d at 1012; see also Larson, 565 F.3d at 861 ("[FOIA's] exemptions cover not only the content of the protected government records but also the fact of their existence or nonexistence, if that fact itself properly falls within the exemption.")

We now join our sister Circuits in holding that "an agency may refuse to confirm or deny the existence of records where to answer the FOIA inquiry would cause harm cognizable under a[ ] FOIA exception." Gardels v. CIA, 689 F.2d 1100, 1103 (D.C. Cir. 1982). To properly employ the Glomar response to a FOIA request, an agency must "tether"its refusal to respond, Wilner, 2008 WL 2567765, at *3, to one of the nine FOIA exemptions-in other words, "a government agency may . . . refuse to confirm or deny the existence of certain ...


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